June 5 2012
DA 11-0703
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 122N
DAVID RAY OMMUNDSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 11-1210
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David Ray Ommundson (self-represented litigant); Glendive, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: May 16, 2012
Decided: June 5, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 In January, 2007, David Ray Ommundson was tried in the District Court of the
Thirteenth Judicial District and convicted of the offense of indecent exposure.
Ommundson appealed and this Court affirmed the conviction. State v. Ommundson,
2008 MT 340, 346 Mont. 263, 194 P.3d 672. In January, 2009, Ommundson filed a
petition pro se for postconviction relief. The District Court denied relief on the petition
by order of February 4, 2009. Ommundson did not appeal.
¶3 In August, 2011, Ommundson filed a second petition pro se for postconviction
relief. On November 4, 2011 the District Court issued an order denying relief on the
petition, and Ommundson appeals. We affirm.
¶4 A district court may dismiss a petition for postconviction relief as a matter of law,
and this Court reviews those decisions for correctness. Herman v. State, 2006 MT 7, ¶
13, 330 Mont. 267, 127 P.3d 422. All grounds for postconviction relief must be raised in
the original or amended original petition. Section 46-21-105(1)(a), MCA. A second or
subsequent petition for postconviction relief must be denied unless it raises grounds for
relief that could not reasonably have been raised in the original petition. Section 46-21-
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105(1)(b), MCA. When the petitioner has had the opportunity for direct appeal, any
grounds for relief that were or reasonably could have been raised on appeal may not be
raised in a petition for postconviction relief. Section 46-21-105(2), MCA.
¶5 Ommundson’s second petition for postconviction relief contends that he received
ineffective assistance of counsel at trial; that he received ineffective assistance of
appellate counsel; that the prosecution failed to disclose material evidence; and that he
has newly discovered evidence. The District Court properly determined that these issues
could have been raised upon direct appeal; or were raised and determined adversely to
him in the first postconviction proceeding; or were not supported by any evidence.
Ommundson has not demonstrated that any of the grounds for relief in the current
petition could not have been raised in prior proceedings so as to allow him to file a
second petition for postconviction relief.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted. The District Court is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ BRIAN MORRIS
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BETH BAKER
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